Little Scalia

Two years ago, the Supreme Court heard a case with bleak implications for the country’s labor movement. A California teacher named Rebecca Friedrichs decided she didn’t want to pay fees to the union that represented her because she didn’t want it funding liberal causes. So she sued. If the Court ruled in her favor, which no one doubted it would, public employees could choose to stop paying such fees, potentially triggering a vicious cycle of membership flight and financial ruin. But then Justice Antonin Scalia died in his sleep on a ranch in West Texas and the case ended in a 4-4 deadlock. The fees would remain; the unions were spared. At least for a while.

In late February 2018, like stagehands striking and rebuilding a set, the Supreme Court did it all over again. The case it heard was nearly identical, except the employee was named Mark Janus and his union was in Illinois. A free-market interest group that represented Janus just replaced the I STAND WITH REBECCA signs with STAND WITH MARK signs and handed them to people outside the courthouse. This time, the conservatives would almost certainly get their win. Poised to break the tie was Justice Neil Gorsuch, sipping happily from a thermos on the stage-left end of the bench. Republicans were in heaven. “Try funding the modern Democratic Party without union dues,” said GOP operative and anti-tax obsessive Grover Norquist, who was milling around the Court. “Good luck.”

It was for moments like these that Senator Mitch McConnell, in 2016, had engineered the unprecedented nullification of President Obama’s nominee to replace Scalia, when he blocked a Senate vote on Merrick Garland. To partisan Democrats, McConnell’s galling land grab wound up being a fitting antecedent to Donald Trump’s election: first a stolen Court seat, then an illegitimate president. For partisan Republicans, though, a solid right-wing vote on the Supreme Court made the chaos and lunacy of the Trump presidency tolerable. “But Gorsuch” has become the “Keep Calm and Carry On” of Trump-era conservatism.

As such, there wasn’t much drama about where Gorsuch was leaning on the day of the union case. (The decision will be announced by the end of June.) As his first full term on the bench comes to an end — he was confirmed in April 2017, after a snippy but ultimately uneventful three days of Senate confirmation hearings — he has proved a reliable conservative, voting in favor of upholding death sentences, strengthening gun rights, and weakening same-sex-marriage protections. The curiosity that morning, as it has been for the past year, was more about Gorsuch the person. He had been introduced to Washington, D.C., as a mild judge from crunchy Boulder who had worshipped at a liberal Episcopal church and charmed former colleagues across the political spectrum. Before he was confirmed, Slate legal writer Mark Joseph Stern wrote that Gorsuch was a “brilliant, witty, handsome, eloquent, perfectly pedigreed judge” who is “not a rank partisan like Justice Samuel Alito or a flame-throwing culture warrior like Scalia.” Within months, that early assessment had begun to strain. The day of the case, in the press gallery, a journalist near me kept whispering questions to a more experienced reporter on his left. Before arguments started, he pointed at Gorsuch’s name on a sheet of paper and leaned over to her. “Is there any truth to the rumor,” he asked, “that this one is a bit of a know-it-all loudmouth?”

The Most Ridiculous Questions From Judge Neil Gorsuch’s Confirmation Hearings

Yes. Over the past year, he has shown off a preternatural gift for violating the unspoken norms of the institution and unsettling polite legal society. Not since 1937, when Franklin Roosevelt appointed Senator Hugo Black to ram through the New Deal, had a new justice arrived on the Supreme Court in such a politicized way. Yet Gorsuch, rather than lie low, has embraced his spoiler persona. A few months after his confirmation, he thought it a fine idea to take a victory lap, traveling with McConnell to several of the senator’s alma maters. A few days later in Washington, he delivered a speech at the Trump International Hotel — at the time the subject of several federal challenges regarding the “Don’t accept foreign bribes” part of the Constitution.

Gorsuch quickly antagonized his colleagues on the bench, reportedly skipping a justices-only meeting Chief Justice John Roberts had asked him to attend and then dominating oral arguments in the first case he heard, about a workplace-discrimination claim. He later dissented in the case, lecturing the majority for overstepping its bounds. “If a statute needs repair, there is a constitutionally prescribed way to do it. It’s called legislation,” he wrote. “Congress already wrote a perfectly good law. I would follow it.” In cases since, he has come across as “awkward,” “condescending,” and “tone-deaf,” in the words of NPR’s Nina Totenberg, and has prompted Court watchers to comb his opinions for egregiously gassy prose — then launch them into Twitter orbit with the hashtag #GorsuchStyle.

Fellow judges, clerks who worked for him, clerks who worked for other judges — people are mystified.

“That style stuff is what has infuriated people on the left more so than anything else,” says Ian Samuel, who teaches at Harvard Law School and co-hosts the influential Supreme Court podcast First Mondays. “He’s not any more conservative than Justice Alito, for example, but attracts a disproportionate amount of hate. Everything he does on the Supreme Court suggests ‘Look at me.’ ” Earlier this month, Gorsuch wrote a 5-4 majority opinion in a case that bars many employees from bringing class-action suits against their employers, prompting a furious dissent from Ruth Bader Ginsburg and a fresh wave of dismayed Ugh, Gorsuch legal commentary.

Linda Greenhouse, the longtime New York Times Supreme Court correspondent, probably went too far when she called Gorsuch Trump’s “judicial avatar.” Gorsuch is by all accounts a square and decent family man. Still, he seems to share with the president who nominated him — as well as the senator who oversaw his confirmation — a cavalier attitude toward institutional stability. “Shit is falling apart everywhere,” says a former clerk for Justice Anthony Kennedy. “The last thing the nation needs is a Supreme Court justice whose goal is to raise the temperature.”

The metamorphosis of milquetoast Neil Gorsuch has baffled people who’ve followed him for years. His nomination, says a partner at a Denver law firm who clerked for one of his colleagues in Colorado, “was for me the first bright light in the Trump administration.” Now, not so much. “Fellow judges, clerks who worked for him, clerks who worked for other judges — people are mystified.”

Gorsuch is often compared to actors of the 1950s — Gary Cooper, Jimmy Stewart, one of the kids from Leave It to Beaver — and his anachronistic, Waspy earnestness seems patrilineal. His grandfather John Gorsuch was a big-time Denver lawyer and civic macher who emblematized a certain mid-century ideal: First World War vet, self-made man, amateur crooner. His son David, Neil’s father, was the president of the Denver Kiwanis Club and a law partner at the family firm. Politically, though, Gorsuch’s mother may have been more influential. Anne McGill Gorsuch, one of seven siblings, rose to power as a hell-raising populist in the Colorado legislature. She had ink-black hair and brilliant blue eyes. She wore furs, drove an Oldsmobile gas-guzzler, and chain-smoked Marlboros: Sarah Palin meets Liz Taylor. In the late ’70s, she helped spearhead an insurgent right-wing faction, known as the “House Crazies,” fixated on tax cuts and culture war.

She caught Ronald Reagan’s attention, and in 1981, he tapped her to be his first EPA chief. Her marriage crumbling, she moved to Washington and got to work doing the opposite of environmental protection. Gorsuch was a sensation. She rolled into the office late, denounced bureaucrats, and oversaw cuts to a third of the EPA’s staff. In her office, she kept a framed poem called “Ode to the Ice Queen.” She also became an object of gendered, often sexist fascination — a Democratic congressman told her he was “smitten” with her during a hearing — and the closest thing Reagan’s Washington had to a celebrity train wreck.

In 1982, the agency became embroiled in a toxic-waste scandal, inevitably branded “Sewergate,” when Gorsuch refused to turn over documents about the agency’s Superfund program. Congress cited her for contempt — a first for the head of a Cabinet agency — and reporters started stalking her around D.C. After less than two years on the job, she stepped down. Teenage Neil, enrolled at Georgetown Prep, was sickened. “You raised me not to be a quitter,” he said, by his mother’s account. “Why are you a quitter?” She wasn’t heard from again for a few years, until her second husband landed in jail on a drunk-driving charge in Virginia and she tried to bail him out. According to the cops, she “banged her shoes on cell bars, scratched a female guard, and screamed obscenities.” She died from cancer in 2004.

Basically everyone at Georgetown Prep presents as a young Republican, but at Columbia University, Gorsuch’s conservatism stood out. “He had a buttoned-up, rock-jaw, super-super-dapper, cordial way about him,” according to Liz Pleshette, who lived down the hall their freshman year and says he had a portrait of Nixon hanging in his room. “It was, ‘Oh, hello, Liz. Oh, let’s not get into an argument.’ Just delightful and adorable and it makes me hate myself.” Gorsuch seemed to define himself in opposition to the prevailing campus politics. “I would ask him, ‘What are you doing here? You come home every day frustrated by how ninnyish and liberal it is.’ ”

Gorsuch co-founded an ambitious conservative publication, The Federalist Paper, dedicated to skewering lefty pieties. (Frequent topics included defending Greek life, decrying Sandinistas, and provoking ninnies.) He covered similar ground in his career as an op-ed columnist for the ColumbiaDailySpectator. In a typical column, he equated protesters of campus military recruitment to Nicaraguan and Soviet censors. In another, he lamented, “As hair styles come and go, as career trends ebb and flow, Columbia remains entranced with the same slogans, styles, and sympathies it has had since the ’60s.”

People shouldn’t necessarily be held accountable for the self-righteous op-eds they write in college. Gorsuch’s clips, though, spoke to a paradox that would color his career. His mother’s Washington immolation fostered in him a reflexive mistrust of elite institutions, but he possessed an adult-in-the-room sobriety she didn’t, which would keep him safely housed in those same institutions. At Columbia, he belonged to the campus’s most debauched fraternity, Phi Gamma Delta, members of which were implicated in a racist taunting incident during Gorsuch’s time there and which was protested by female students for its hostile sexual atmosphere. But Gorsuch avoided controversy. “He might have been there when trouble was happening around him but would not have been part of it,” says TheFederalist Paper co-founder Andy Levy, now a producer for S.E. Cupp Unfiltered, a politics show on HLN. “He wasn’t a teetotaler, but, you know, he wasn’t running down the street naked or yelling obnoxious things out the window at women.”

After Columbia, it was off to Harvard Law School, and after that, Supreme Court clerkships with Justices Byron White and Anthony Kennedy. He also studied at Oxford on a Marshall scholarship, later completing a doctorate that argued against physician-assisted suicide and euthanasia. In the mid-1990s, he moved to D.C. with his bride, Louise, an Oxford classmate, where he joined a young firm called Kellogg Huber.

When Anne Gorsuch landed on Reagan’s radar, it was thanks in part to the patronage of Joe Coors Sr., the Colorado beer baron. At Kellogg, Gorsuch cultivated a similar relationship representing Colorado’s richest man, Philip Anschutz, a conservative oil-and-gas billionaire with a comically sprawling business empire (Major League Soccer, The Weekly Standard, Coachella). In 2005, Gorsuch was working a stint in the Department of Justice when he went in with two of Anschutz’s deputies on a vacation home in the Rockies. Shortly thereafter, a seat opened up on the Tenth Circuit Court of Appeals. The Denver Post reported the names of three female front-runners. Two days later, a top Anschutz lawyer wrote a letter to the White House recommending Gorsuch, age 38, who had never served as a judge or practiced law in the state. Gorsuch was nominated and quickly confirmed.

In the Colorado legal world, Gorsuch was known as a menschy and nonthreatening Republican. But he was also adept at signaling his conservative bona fides. In 2010, he was invited to Anschutz’s dove hunt at a luxurious ranch near Colorado’s Wyoming border — an annual pilgrimage for the state’s political elite — where he delivered the sort of darkly ominous speech favored by reclusive billionaires, warning that “nothing is inevitable” and urging “vigilance to all threats to our prosperity.” A few years later, he presided over the biggest case of his career, when Hobby Lobby’s challenge to Obamacare — the arts-and-crafts company didn’t want to underwrite birth control for its employees — came before the Tenth Circuit. The court ruled in Hobby Lobby’s favor, and Gorsuch wrote a swelling hosanna to religious liberty. The Supreme Court, following his lead, would rule for Hobby Lobby in 2014.

Hobby Lobby punched Gorsuch’s ticket to judicial glory. Months after he wrote his opinion, he delivered a prestigious annual lecture at the Federalist Society, the elite right-wing legal fraternity. A year later, Scalia, his hero, would join him in Colorado for a fly-fishing expedition. In February 2016, Gorsuch was on a ski slope, contemplating a mogul field, when his phone buzzed with news of Scalia’s death. “I am not embarrassed to admit,” he said in a rapturous Scalia tribute, “that I couldn’t see the rest of the way down the mountain for the tears.”

It is mandatory for Republicans to weep publicly about Scalia’s death. Still, it’s easy to forget how bad the Supreme Court situation looked for the GOP at the time. In 2015 and 2016, liberals won big on affirmative action, abortion, and gay marriage, and conservatives feared that Roberts and Kennedy were becoming unreliable. When Scalia died — with Obama still president and Hillary Clinton looking like his successor — it appeared the balance of power on the Court would shift sharply to the left, possibly for decades.

During the campaign, Trump’s stated preference for a Scalia replacement was a Scalia clone. So he tapped the leader of the Federalist Society, Leonard Leo, to find him one. With Leo’s help, Trump produced two lists of acceptable candidates. According to one study, Gorsuch was the third-most-“Scalian” of the nominees, based on everything from his originalist jurisprudence to his penchant for dashing off solo opinions. But his outward gentility cloaked his hard-line instincts, making it hard for Democrats to rally against his nomination. Perhaps more important, he was among the youngest of Leo’s all-stars and therefore likeliest to deliver conservative wins for decades. Trump announced his choice, The Bachelor style, on national television.

Gorsuch was met in Washington with a grueling but pointless week of confirmation hearings. Democrats lacked the votes to block him, and their grilling of Gorsuch wasn’t so much an indictment of his credentials as a spasm against the skulduggery that got him there. The work of McConnell and the Federalist Society was buttressed by a reported $10 million campaign from an outside spending group called the Judicial Crisis Network. JCN had also waged a $7 million anti-Garland campaign called “Let the People Decide,” aimed at vulnerable U.S. senators. (Anschutz is a funder of the Federalist Society and has personal connections to JCN, which is bankrolled almost entirely by a single anonymous donor.)

For conservatives, too, in a way, Gorsuch himself was beside the point. He was young, pedigreed, and vetted by the right people. John Malcolm, a legal expert at the Heritage Foundation, had also released a Supreme Court wish list in 2016, but Gorsuch wasn’t on it. When I asked him why, he repented, clarifying that Gorsuch did in fact possess the only quality that mattered. “This is clearly an originalist,” he explained. “This was not somebody who is a quote-unquote living Constitutionalist. And there are people like me who will say, ‘I’m prepared to let the political chips fall where they may so long as there is a judge who is taking that kind of approach.’ ”

In November, Gorsuch delivered the keynote address at the Federalist Society’s annual black-tie dinner, which took place in Washington’s Union Station. Among the conservative VIPs in attendance were Jeff Sessions and Scott Pruitt, Republican senators Ben Sasse and John Cornyn — who would later have Gorsuch to his home for dinner — and Justice Alito. Gorsuch warmed up the room, like a hype man for himself. “Tonight I can report: A person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court!” And: “Originalism has regained its place, and textualism has triumphed, and neither is going anywhere on my watch!”

Gorsuch was right to note the remarkable rise of these ideas since the Federalist Society’s founding in 1982. Robert Bork, a famously disastrous Supreme Court nominee, was laughed out of his confirmation hearing in 1987 for suggesting the Constitution should be read as it was in the 1780s. Thirty years later, there’s nothing more basic than a conservative judge who swears by the original intent of the Framers. According to one study, the incidence of the word originalism in law-review articles has risen from 15 between 1980 and 1984 to 2,351 between 2010 and 2014.

And yet, Gorsuch complained, his work was still being maligned by liberal elites. He began to call out his haters. “Some pundits have expressed bewilderment that I ask questions at oral argument about the text of our statutes,” he said. “I want to take a poll. I want to know what you think. Should I keep talking about the text and original meaning of the Constitution?” This was like asking Skynyrd fans if they wanted to hear “Free Bird.” A few minutes later, he brought up a critical article from the Harvard Law Review, referring obliquely to “some folks up in Cambridge,” as if he hadn’t once been one of them. “Does anyone else find it curious that daring to ask questions about the status quo is apparently illegitimate, while defending the status quo seems just fine?” Pause for claps. “Oh, well. I think we should just go ahead and ask the questions anyway. Whaddaya say?”

Tonally, the speech seemed a tad … aggressive. “It could have used a little bit of, I don’t know, self-deprecating humor,” says one Federalist Society member who attended. But if the evening felt at times like a campaign rally, that was by design. The point of the Federalist Society is to make room for conservative jurisprudence — and that means, in part, finding ways for right-wing judges to let their hair down. (No transcript of Gorsuch’s speech was made available, but I obtained a recording from someone who attended.) There is a concept known as judicial drift — or “the Greenhouse effect,” after the Times writer. “You get these good conservative justices, they move to D.C., they get on the Court, D.C. is a liberal area, the media is liberal, they want approval, start tempering their conservatism, and drift to the left,” explains Amanda Hollis-Brusky, a Pomona College political scientist. “What the Federalist Society has done has created a competing judicial audience, so these justices and judges don’t need to seek the applause of the liberal, Establishment media.” If they stay true to this constituency, they get celebrated, invited to more conferences. If they go off the reservation, they get roasted. Which helps explain why Roberts fled to Malta for two weeks — “It’s an impregnable fortress island,” he joked — after upholding Obamacare’s individual mandate in 2012.

In the same way that tea-party — and now Trumpian — politics have become indistinguishable from mainstream Republicanism, the Federalist Society has come to occupy the dead center of conservative judicial thought. The paradigm shift started in 2005, when George W. Bush nominated his friend Harriet Miers, the White House counsel, to the Supreme Court. Conservatives had already been burned when Bush’s father nominated the moderate liberal David Souter, who was friendly with the White House chief of staff. The Federalists revolted, Bush pulled the Miers nomination, and he nominated the far-right Alito instead. When it came time to choose Scalia’s successor, no revolt was necessary. “Because of the force of the Federalist Society,” Hollis-Brusky says, “Trump was just taking orders.”

The infrastructure built up by the Federalist Society — and the Heritage Foundation, and the Judicial Crisis Network — is designed not just to breed elite conservative lawyers but elite conservative lawyers in the flame-throwing mold of Scalia. “One of [Scalia’s] functions was to provide a line for the larger conservative community to latch on to both in oral arguments and in opinions,” says University of Baltimore Law School professor Garrett Epps. “He was always very sure to dominate the op-eds with something and go way over the edge.” While his caustic dissents alienated colleagues — and may have undermined his own influence on the Court — they became, over time, a canonical body of work around which the conservative legal movement would rally. Among the conservative justices, Roberts and Kennedy now occupy the ideological center of the Court; Thomas and Alito, while reliably right wing, aren’t rock stars. That leaves Gorsuch — and Gorsuch knows it.

A few weeks before his Federalist Society speech, Gorsuch heard a case with major political implications. The justices would rule on the electoral maps Wisconsin Republicans were accused of gerrymandering for partisan gain. Gorsuch’s seat is located on the far side of the Supreme Court bench, next to Sonia Sotomayor’s. It is not a young court, and Gorsuch’s fresh-scrubbed look stands out. Ginsburg is visible mainly from the scrunchie that peeks out over her seat. Thomas reclines at impossibly low angles and often appears unconscious. Gorsuch, eyes wide, hair gelled, has the bearing of a man who sleeps well at night.

Toward the end of the case, Gorsuch jumped in to grill Paul Smith, the lawyer arguing against Wisconsin’s maps, implying the Court had little business getting involved at all. “Maybe we can just for a second talk about the arcane matter of the Constitution,” he tut-tutted. “Where exactly do we get the authority to revise state legislative lines?” A moment later, Ginsburg piped up with a sharp rejoinder: “Where did ‘one person, one vote’ come from?” (Answer: the 14th Amendment.) Gorsuch then tried again. “Do you see any impediment to Congress acting in this area?” he asked Smith. “Other than the fact that politicians are never going to fix gerrymandering?” Smith replied. “They like gerrymandering.” The audience in the gallery cracked up, and Gorsuch stopped talking. “It was ‘Welcome to the NFL, rookie,’ ” says Epps. “My 1Ls could answer that.”

This mirrored an immigration case that took place the day before. “I look at the text of the Constitution — always a good place to start — and the Due Process Clause speaks of the loss of life, liberty, or property,” he intoned. “When the law runs out and the judges cannot say what the law is, they don’t make it up. Right?” And that in turn echoed a moment from his very first oral argument, when he asked a lawyer if they could explore “the plain words of the statute” together. When the lawyer replied that he wasn’t asking the Court to break new ground in interpreting the law in question, Gorsuch interjected, “No, just to continue to make it up.”

Delivering civics lessons from the bench has turned out to be Gorsuch’s signature move. “He showed up and started speaking a lot at arguments and, quite frankly, said a number of condescending and stupid things to his colleagues,” says a recent Supreme Court clerk. Compared to Scalia, who terrorized lawyers during oral arguments, Gorsuch is mild. But if Scalia’s defining trait was snark, Gorsuch’s might be smarm. Take his habit of asking lawyers to “help” him with some aspect of a case he evidently finds obvious. He’s done this in 15 different cases.

Behind the shtick, Gorsuch is performing a conservative virtue signal. In his 2016 paean to Scalia, Gorsuch called for judges “to apply the law as it is,” not to decide cases based on “moral convictions” or “policy consequences.” In theory, this gets to the heart of his predecessor’s narrow jurisprudence. In practice, it can be difficult to argue, credibly, that the answer to every single Court case is obvious from the words of a statute, or the Constitution, or the thesaurus, or whatever. Gorsuch doesn’t have Scalia’s dexterity. “It’s almost like a kid trying on his dad’s suit, and it’s just too big for him,” says David Lat, the founder of the legal website Above the Law. Or as Rick Hasen, a professor at UC Irvine’s law school, puts it, “He’s Scalia without the spontaneous wit and charm.”

The textualist monomania seems to grate especially on Ginsburg, who was famously close with Scalia. In January, after a Gorsuch dissent called out the “absurdities” of her reasoning in an otherwise deadly case about legal filing deadlines, she cheekily responded in a footnote, writing that Gorsuch’s tendentious reading of the case “conjures up absurdities” of its own. In April, she wrote a terse one-paragraph dissent critiquing Gorsuch’s “wooden” reading of a law, and in her blistering dissent in May’s big workers-rights case, she called his opinion “egregiously wrong,” invoking the infamous 1905 anti-labor decision Lochner v. New York.

The pro-Gorsuch crowd thinks the anti-Gorsuch crowd is being hysterical. “He seems to trigger a very intense reaction on the left,” says National Review legal writer Ed Whelan. “I don’t think it’s easily explicable by objective fact. Our president can disrupt and derange people in a lot of ways. I think a lot of people are deflecting their hostility toward Trump onto Gorsuch.”

Perhaps. But talk of intra-Court feuding doesn’t seem outlandish. Last fall, veteran CNN Court correspondent Joan Biskupic reported on an emerging rift between Roberts and Gorsuch. Later, NPR’s Totenberg said it was Justice Elena Kagan who was taking Gorsuch to task in the justices’ twice-weekly conferences. “With Elena Kagan and the chief justice, you have this sense that they’re playing the long game,” says Amy Howe, a Supreme Court beat reporter who publishes on Scotusblog. Both dissent less frequently than their colleagues and strive behind the scenes for consensus.

And yet the Court has published opinions this term at a historically sluggish pace. Some speculate that’s because Kennedy is flagging and will soon retire. But it might also be because an intransigent Gorsuch is gumming up the works. Like a gunner in a 1L lecture hall, Gorsuch strives to make himself heard. In his first 30 cases, Gorsuch dissented six times; Roberts, by comparison, dissented once. (“Media speculation suggesting Justice Gorsuch isn’t getting along with his colleagues is ridiculous,” says Jamil Jaffer, who clerked for Gorsuch last term. “Of course, the justices are going to disagree on the law, but it never gets personal.”)

“Neil believes that there is a smaller universe of hard cases than maybe a lot of other judges,” says his Oxford classmate Christian Mammen. When, last June, the Court wrote an unsigned, 6-3 decision upholding certain same-sex-marriage protections, Roberts was in the majority. The chief justice had sharply dissented from the landmark 2015 case that legalized gay marriage but has since accepted it as settled law. Gorsuch, by contrast, fired off an incredulous dissent. “He’s rabble-rousing,” wrote Harvard Law School professor Noah Feldman, parsing the case. “And the reason to do that is to become the conservative leader.”

The movement to resist Donald Trump can feel like a meandering amoeba of Saturday Night Live skits and one-off election upsets. Most tangibly, though, it’s a legal resistance. Robert Mueller’s Trump-Russia dragnet is a Department of Justice production. Several of Trump’s Executive-branch paroxysms — banning transgender people from the military, expelling 700,000 Dreamers — have been blocked by federal courts. Trump, feeling besieged, recently implored the DoJ to investigate itself. This battle between the White House and the judicial Establishment could quickly escalate into a full-blown constitutional crisis, one that would lead directly to the Supreme Court. In that sense, the gravest concern about Gorsuch is not his judicial philosophy, or his behavior, but his independence from the man who nominated him.

The earliest signs were promising. During a pre-confirmation meeting with Senator Richard Blumenthal, Gorsuch said that Trump’s attacks on federal judges were “disheartening.” But when that comment upset Trump, Gorsuch scrambled, sending the president an obsequious note. (“Your address to Congress was magnificent,” “Congratulations again on such a great start,” etc.) And though Gorsuch did rule against the administration already this year, siding with the four liberals to block the deportation of an immigrant, it is difficult to review the full scope of his career — a swift ascent boosted by a handful of powerful patrons — and not wonder if he would rule against the president in a case with significantly higher stakes.

In late April, the Supreme Court heard oral arguments in Trump v. Hawaii, the case that will determine the fate of the president’s travel ban and the most straightforward test of the Court’s deference to the White House. The day of the case, White House counsel Don McGahn sat in the second row of the spectators’ gallery, not far from Lin-Manuel Miranda, who sat in the third. Several Supreme Court spouses — Mary Kennedy, Joanna Breyer, Martha-Ann Alito, and Louise Gorsuch — attended. It was about the closest the Supreme Court gets to a carnival atmosphere. Someone asked Miranda to sign his pocket Constitution.

Arguing the case for Hawaii, which challenged the ban in 2017, was Neal Katyal, a former solicitor general under Obama who had written a rapturous Times op-ed supporting Gorsuch’s nomination. There are straightforward reasons to believe Trump’s ban — which bars residents of seven countries, five of which are Muslim-majority, from traveling to the United States — violates the religious liberties protected by the First Amendment. And Katyal made that argument. But when Gorsuch started prodding him, Katyal switched up his strategy. The ban, he argued, also exceeded the authority Congress had delegated to the president — a line of reasoning that would seem to flatter Gorsuch’s jurisprudence of restraint. Gorsuch appeared unmoved, however, and instead pulled a familiar Scalian card from his deck. Justices shouldn’t overstep their bounds, he argued. They shouldn’t confuse their robes for capes. “We have this troubling rise of this nationwide injunction, cosmic injunction,” he said, referring to the lower courts that blocked Trump’s ban. “That’s a really new development.” He concluded with a trademark Gorsuchism. “What do we do about that?”

Conventional wisdom says the travel ban will be upheld, five votes to four. It’s possible that one of the conservatives will surprise us by joining the Court’s left wing, given that Kennedy is sensitive to claims of religious discrimination and Roberts worries about the Court’s legacy. But certain things became clearer that day. After Katyal wrapped up and Roberts thanked him for his time, nobody in the High Court prognostication business doubted that Gorsuch, in the biggest case of his young career, would cast his vote for Trump.

*This article appears in the May 28, 2018, issue of New York Magazine. Subscribe Now!

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From @presssec: new rules for reporters at WH press conferences.- one question per reporter, then yield floor and microphone.- followup question “may be permitted.” Then yield floor and microphone.- “failure to abide” may result in suspension/revocation” of WH press pass.

so, the conventional wisdom on election night was that democrats had not achieved the resounding repudiation of president trump they were looking for. yes, they’d won the house, but not overwhelmingly. and progressive favorites stacey abrams, andrew gillum, and beto o’rourke had gone down to defeat. meanwhile, republicans had made slight gains in the senate. a few days later, the thinking shifted in Democrats’ favor, as more late-breaking results came in from various states, especially california, which is notoriously slow at counting ballots, and where the party did extremely well. we’re not almost two weeks out from the election, enough time to look at things more dispassionately. how do you rate the performance now?

Trying to get away from the endless and interminable and redundant arguments over how to define a “wave.”

Benjamin Hart3:10 PM

yes, I agree, there is little more tedious than parsing what defines a wave

Ed Kilgore3:11 PM

Democrats won the House popular vote and picked up 37 or 38 seats. Dems won 22 of 34 Senate races (with one in Mississippi still to go), and by just about any measure, more Senate votes. And they picked up seven net governorship and seven state legislative chambers.

Part of the problem is that an insanely pro-GOP Senate landscape made a good Democratic performance look bad.

And the other problem was sky-high Democratic expectations, plus the overwhelming attention given to close races in Florida, Georgia and Texas.

Which all went Republican.

Benjamin Hart3:13 PM

yes, and the pressure to prematurely label the evening one way or another, which is endemic to election coverage (and which I don’t see going away any time soon)

the other thing, I think, is that trump is such an outlier of a person and president that some people view anything less than a sweeping rejection the likes of which we’ve never seen before as a bit of a letdown

Ed Kilgore3:14 PM

Yeah, the commentariat has not adjusted well to the slow counts that ever-increasing voting-by-mail plus provisional ballots have introduced.

As for Trump, I guess part of the polarization over him is that it’s hard for partisans to interpret anything that happens as anything other than total victory or defeat for MAGA. And the MSM tends to respond with quick judgments of a “split decision,” which is very misleading.

Benjamin Hart3:20 PM

yep. haven’t seen TOO much of that since the election, to be fair. but back to the actual gains made by dems, which it’s easy to lose track of amid the hundreds of results. what do you think was their most important victory other than winning the House? for me, it might have been knocking off scott walker in wisconsin.

Ed Kilgore3:23 PM

Guess it depends on your interpretation of “important.” If you mean “soul-satisfying for progressives,” then yeah, finally taking down the guy who had most consistently applied the worst kind of conservative policies to a previously progressive state was a very big deal.

Sweeping Orange County, California’s congressional seats was another big deal emotionally, particularly for those of us old enough to remember O.C. as a John Birch Society hotbed.

From a more practical point of view, all those congressional wins mattered–first, as part of a House takeover, and second, as a foundation for (maybe) a Dem reconquest of the Senate in 2020.

And the gubernatorial and state legislative gains will help with the next round of redistricting, though there’s some unfinished business on that front in 2020.

As I’ve argued at some length, even some losses were important for Dems–particularly the Florida and Georgia gubernatorial elections and the Texas Senate race. They showed that finally “national Democrats” (including African-Americans) can do better in the former Confederacy than Blue Dogs–at least in states with the requisite combination of a large minority vote and some upscale suburbs.

Benjamin Hart3:29 PM

yes, and that may also have big repercussion in terms of what kind of candidate democrats want to nominate in 2020

Ed Kilgore3:30 PM

Well, it certainly reinforces the idea that there’s a “sunbelt strategy” for 2020 that could work as an alternative to Democrats obsessing about the Rust Belt states Trump carried.

Benjamin Hart3:31 PM

right – arizona and georgia really could be in play

and, of course, florida

Ed Kilgore3:31 PM

And North Carolina.

Benjamin Hart3:31 PM

right.

so, all in all, a democratic party that is somewhat addicted to being traumatized should be feeling pretty good

Ed Kilgore3:35 PM

Yeah. There were some painful near-misses, but not really much grounds for a struggle-for-the-soul-of-the-party thing. That’s good, since Democrats will need all their energy to winnow their 40-candidate presidential field.

A Florida elections expert digs into what went wrong for Democrats on Tuesday

This election was the third consecutive Governor’s race decided by a point or less, bracketing two consecutive Presidential elections decided by a point. This drives homes two points: One, Florida, for all its dynamic growth and demographic changes, is very stable; and Two, when organizations like Quinnipiac try to peddle off polls showing candidates in Florida with 6-point leads, or 9-point leads, you now know what to do with that information (a post/rant on public polling is coming soon).

There are a lot of reasons why Florida is very competitive…but it is what it is. Big chunks of Florida cancel each other out, and both parties have large, and quite dug-in bases – and neither have a base that alone gets them to 50% + 1. Winning Florida (or losing it) is about managing the margins throughout Florida.

16 Democratic representatives signed a letter opposing Nancy Pelosi for House speaker … but she still has no announced challenger

… Pelosi could lose as many as 15 Democratic votes when she stands for election as speaker on Jan. 3. One of the 16 signers, Ben McAdams (Utah), is now trailing Rep. Mia Love (R-Utah) and might never cast a speaker vote.

Not signing the letter is Rep. Marcia L. Fudge (D-Ohio), who has publicly opposed Pelosi and is now mulling a run against her. Fudge said Friday she would not make a final decision on whether to run until next week at the earliest.

Another five Democrats — Rep. Conor Lamb (Pa.) and Reps.-elect Jason Crow (Colo.), Jared Golden (Maine), Mikie Sherrill (N.J.) and Abigail Spanberger (Va.) — have made firm statements saying they would not vote for Pelosi but did not sign the letter.

stacey abrams and andrew gillum both conceded their elections this weekend to their republican opponents after protracted post-election battle. realistically, did either of them have any other option but to call it quits?

Zak Cheney-Rice11:47 AM

I think with Gillum the outcome was more or less decided on election night. His race was always more of a long shot than Bill Nelson’s reelection bid — the other high-profile Florida contest that dragged on into last week — and was never as close as that one. But I think it’s important to note that Abrams was pretty intentional about not conceding, in the traditional sense. She basically said, in so many words, that Kemp’s victory would have to stand because she saw no other available legal recourse available. I think she knew her options included dragging this out longer, but also knew that, legally, there wasn’t much she could do to alter the outcome.

But she has said she will continue to pursue issues around election integrity in Georgia, and I think that will include several (more) legal challenges to Kemp’s win, or at least to the mechanisms that facilitated it

Benjamin Hart11:48 AM

yes, she did not praise kemp, and called his win “legal” but refused to say that he was “legitimate” when asked by jake tapper

Zak Cheney-Rice11:52 AM

Yeah the question of legitimacy seems to be a sticking point for a lot of folks. There’s a Slate piece (https://slate.com/news-and-politics/2018/11/georgia-stacey-abrams-brian-kemp-election-not-stolen.html) circulating today arguing that we shouldn’t describe the Georgia election as “stolen,” and the first reason listed is because it could lead more and more people to see American elections as illegitimate. But I think the cat is pretty far out the bag on that one. He’s out and running down the street. I live in Atlanta and there are piles of little cards littering the streets around Piedmont Park (the city’s Central Park equivalent) that read, “Stolen Votes.” There are many, many people who believe this election was ill-gotten. So yeah, I think it is fair to say this wasn’t a legitimate win by plenty of metrics.

I’m not sure what group — activist, political, or otherwise — created the cards, to be clear. But it expresses a widely held sentiment.

Benjamin Hart11:57 AM

yeah, I have to say I’ve been on the other side on that debate – while I think kemp is a dirty character and absolutely employed the underhanded tactics we’ve all heard about, “stolen” struck me as a rhetorical bridge too far, for the reasons that a) it’s an escalation that I’m not sure is useful in the wider context of institutional delegitimization that republicans are pushing and b) we don’t actually KNOW if kemp’s actions swung the election, though we can suspect they did. I’m interested to hear you say otherwise, though.

Zak Cheney-Rice12:07 PM

I think it’s a useful and accurate frame, but it definitely has a veneer of plausible deniability because so much of what goes into “stealing” these elections takes place long before election day. Brian Kemp can always point to the fact that he’s acting well within the law, but it’s important to note these are laws he and/or his party created, likely for this very purpose. If you disenfranchise more than a million people — often for quibbling bureaucratic irregularities — and do so in a way that pretty transparently targets those whose lives are already beset by instability and unpredictability around housing, transportation, and employment, you are essentially creating the electorate you want. In Republicans’ case, that electorate is one skewed toward maintaining white, and conservative, power, at the expense of black voters, young voters, and poor voters (all of which often overlap). So the question of “theft,” it seems to me, is purely rhetorical. In our technical, traditional understanding of elections, we would not necessarily describe elections that took place in the Jim Crow South as “stolen.” But if roughly half of the Jim Crow South’s electorate is either barred from voting outright or forced to navigate an insane labyrinth of inconveniences, barriers, and sometimes outright violence to cast their ballots, it’s a stretch to describe that as legitimate, either.

That is, of course, a matter of differing scale. But it doesn’t take much to tip an election like Kemp-Abrams.

Also, it’s not our job as voters to keep falsely believing our elections are “legitimate” when clearly, in several key ways, the evidence suggests otherwise.

That distinction is earned.

Benjamin Hart12:12 PM

all good and useful points. but I do think the phraseology matters. would you say that the florida election was stolen because of the state’s disenfranchisement of felons?

Zak Cheney-Rice12:24 PM

It does matter, I think, but I haven’t found any of the arguments that dismiss such phrasing as extreme, or bemoan how it sows mistrust in our systems, to be especially convincing. I do believe that locking up black people at disproportionate rates, then ensuring they cannot vote even after they’ve done time, is doing the same work that racist voter suppression does by all the means listed above. It is stealing their right to vote, plain and simple. I think we can have a nuanced discussion about whether that means elections are being “stolen” outright or not (I tend to lean toward yes) but at the end of the day I think the more pressing issue is that we are building our democracy by ensuring people who should be able to vote cannot, and that we perhaps need more urgent language to describe the actual stakes there.

The California union that provided major funding for successful ballot campaigns to expand Medicaid in three red states this year is already looking for where to strike next to expand Obamacare coverage in the Donald Trump era.

Leaders of SEIU-United Healthcare Workers West declined to identify which states they might target in 2020. But the six remaining states where Medicaid could be expanded through the ballot are on the group’s radar: Florida, Mississippi, Missouri, Oklahoma, South Dakota and Wyoming.

NEW: CNN asks court for an emergency hearing Monday afternoon, as the White House still plans to boot CNN correspondent Jim Acosta, despite court order that reinstated the journalist. https://t.co/vrmtazbgcI

JUST IN: Sens. Blumenthal, Whitehouse and Hirono file lawsuit challenging President Trump’s appointment of Acting AG Whitaker, arguing the appointment is unconstitutional because Whitaker was not in Senate-confirmed post.

New: “The White House Correspondents’ Association is pleased to announce that Ron Chernow, one of the most eminent biographers of American presidents and statesmen, will be the featured speaker at its annual dinner on Saturday, April 27, 2019.” History and First Amendment theme.